In Erewhon’s court: The case of the hijab
A fictional court delivers a fictional judgment on an issue that is all too real.
This is a writ petition challenging a regulation of the State Education Board concerning the dress code for schools. The petitioners’ challenge is that by the operation of the code, girl students who are Muslims are prevented from wearing the headscarf called the hijab. If they do wish to wear it, they are prevented from entering the school and thereby deprived of education.
For reasons that I will set out at the end, we refrained from admitting the petition but ordered short notice of motion directing the authorities to file their response within 10 days and proceeded to hear this matter forthwith.
We have examined the basic regulations and the dress code. It provides for clothes that must be worn by the children. It does not provide for any mandatory headwear.
The hijab is a piece of cloth which is worn over the head. It covers the back of the head and neck. It is a known and recognised item of clothing for Muslim women. It forms part of their religious practices and observances.
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The question is whether the authorities are within their rights to prevent girl students from wearing the hijab if they want to.
I do recognise that there is a body of opinion which bats for uniformity and indeed the word “uniform” itself means that there should be items of clothing which are worn by all students. One advantage in this is to iron out differences of social strata. Another is to provide an atmosphere of togetherness so that all students feel that they are equal. All this aids the education of the child.
“The Board of Education would do well to focus on what goes into the heads of students rather than on what is on them. That is their job.”
However, what I have before me is not just a simple classroom and a simple set of uniform clothing. I have before me a country comprising people from diverse religions—Hindus, Muslims, Christians, Sikhs, Parsis and others. We are bonded together under the Constitution which provides for equality, liberty, fraternity and that includes the protection of minorities and mandates secular outlook and practices. In other words, accommodation and tolerance are built into our legal and social fabric. I speak not of the tolerance that comes from sufferance and letting be, but the tolerance that comes from equality and respect. That is how I interpret our constitutional values and provisions.
To put searching questions is the prerogative of the judge. We put a couple to the counsel for the State government.
Children have been going to school and have been wearing the uniform for many years. What is the sudden need for you to proscribe hijabs now?
How does wearing a headscarf interfere with the uniform you have prescribed, or interfere with the education of the child? Does it prevent seeing or hearing?
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Have you made a list of all items that are featured on the body of students which carry a religious significance? Examples are sacred thread on the body, sacred thread on wrists, tilak and sacred ash on the forehead, steel kadha on the wrist, turbans on heads. Show us first this exhaustive list of items banned in the interests of uniformity.
I have rarely seen a case collapse so quickly. No good answers were forthcoming to questions 1 and 2. Question 3 was shied away from, with counsel refusing to enter the thicket, saying he had no instructions and could not get any since no one from the Board was willing to provide them.
Two and just two tests need to be applied here. One is discrimination, which is obvious on the face of it when it is just one community that is being targeted. A recently oft-repeated phrase—public authority administering regulation with an evil eye and an unequal hand—comes to mind from the hallowed judgment of Justice Vivian Bose in Anwar Ali Sarkar’s case.
The other test is reasonableness, and to meet that test the Board has to show why it is necessary in the first place to formulate the ban, and how without such ban academic instruction, which is the Board’s business, cannot be given to the students. This it has failed miserably to do.
“One can well sympathise with the plight of the Muslim girl—don’t wear the hijab and suffer loss of life or wear it and suffer loss of education.”
It is of no relevance to us whether the hijab is an essential part of the Muslim faith; it is sufficient that it is part of the faith. This would be sufficient to allow the writ petition but we are constrained to add a couple of more paragraphs.
As we look around the halls of this venerable Court we see portraits of several great judges and lawyers who wore headwear appropriate to their religion. They too were governed by the dress codes of the profession, yet no one thought to ask them to divest them of these before entering the portals of the Court. To do so would have been deeply disrespectful of person and faith.
In determining a case like this, which is anchored on how we understand and apply our Constitution, we judges should not be blinkered by the case papers submitted to us and allow myopia to block a broader approach. A wider vision is expected from those whose words have the force of constitutional law and are taken by society to regulate the conduct and affairs of men and women, and now as we see, children.
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It is no secret that of late the minorities, especially the Muslim community, is facing attempts at estrangement and intimidation including violence emanating solely from the fact of their religion, and the authorities are not coming down on the perpetrators as they should. If a community feels the brunt of insecurity, one way in which it responds is to display visible forms of identity as a way of protest and as a way of banding together. The answer is not to focus on a form of identity such as the hijab but to provide the feeling of safety and security which is the birthright of all Indians regardless of creed.
The State of Karnataka can learn from its neighbouring State of Tamil Nadu, which strives to be free of religious persecution, and where attempts by educational authorities to impose a hijab ban reportedly received a slap on the wrist from the government, saying it should be the choice of the student. The result is that the hijab is not an issue in the State, and there is no increase in the numbers of students wanting to wear it. Don’t make the fuss the problem seems to be the lesson.
We cannot be unmindful of other attempts by this State government or the ruling party which has a pronounced slant against this same community—ban on cattle slaughter, campaign against halal meat etc.
We may also draw a cautionary lesson from what is going on in Iran. In that country lives are being lost from a rigid enforcement of the hijab. One can well sympathise with the plight of the Muslim girl—don’t wear the hijab and suffer loss of life or wear it and suffer loss of education. Is this what we want our country to become, a country where a piece of cloth is the determinant of all that is precious. Surely our leaders do not want life and liberty to hang on a piece of cloth. We say so with assurance but cannot deny a small voice that tells us the contrary. Hopefully that voice will be stilled.
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The Board of Education would do well to focus on what goes into the heads of students rather than on what is on them. That is their job and it is distressing to read of attempts by educational boards to rewrite history, cast revered national leaders into the shade, and fashion a cultural and social picture that fits the desires and imaginings of those who have been voted into office to govern under and by the law. The Board’s mandate is to provide a good education to prepare students for their way in life. The world as we have made it has, sadly, enough and more insecurities for the young, and educators should not add to them.
Let us now explain why we chose to close this case in a matter of weeks. We smelt the desire to create a controversy between religions and to draw the Courts into it. To allow this case to ferment in the Courts with daily headlines of divisive written pleadings and irresponsible oral submissions would tear into the social fabric. It provides grist to the mill for TV anchors whose TRP ratings thrive on discord. Well, we will have no part in promoting that. The sooner such issues are dealt with, and dealt with firmly, the better. In the final summation, the Constitution and the laws exist for the better living of all peoples that are governed by them, and it is our business to ensure that. We may add that Courts have more pressing work than be diverted into peripheral clothing issues, and that includes the continued incarceration of large numbers of people held in jail without trial under penal laws.
Erewhon (an anagram of “nowhere”) is the fictional country where Samuel Butler set his satirical novel of the same name. The court, judge, and judgment in this piece are fictional. Sriram Panchu is real. He is a Senior Advocate at the Madras High Court.
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